Case No. S249895 IN THE SUPREME COURT OF …...vs. Superior Court of California, County of Orange,...
Transcript of Case No. S249895 IN THE SUPREME COURT OF …...vs. Superior Court of California, County of Orange,...
Case No. S249895IN THE SUPREME COURT OF CALIFORNIA
Abbott Laboratories; AbbVie Inc.; Teva Pharmaceuticals USA, Inc.; Barr Pharmaceuticals, Inc.; Duramed Pharmaceuticals, Inc.; and Duramed Pharmaceutical Sales Corp.,
Petitioners,
vs.
Superior Court of California, County of Orange,
Respondent,
People of the State of California ex rel. Orange County District Attorney Tony Rackauckas,
Real Party in Interest.
After a Decision by the Court of Appeal for the Fourth District, Division OneCase No. D072577
Issuing a Writ of Mandate to Vacate an Order of the Superior Court of Orange County
Superior Court Case No. 30-2016-00879117-CU-BT-CXCHon. Kim Dunning
ANSWER TO PETITION FOR REVIEW
Kirkland & Ellis LLP *Michael Shipley (SBN 233674)
[email protected] 333 S. Hope Street
Los Angeles, CA 90071 Telephone: (213) 680-8400
Jay P. Lefkowitz (phv forthcoming) Yosef Mahmood (SBN 295976)
Attorneys for Petitioners Teva Pharms. USA, Inc.; Duramed
Pharms., Inc.; Duramed Pharms. Sales Corp., and Barr Pharms. Inc.
Munger, Tolles & Olson LLP *Jeffrey I. Weinberger (SBN 56214)
[email protected] 350 S. Grand Avenue, 50th Floor
Los Angeles, California 90071 Telephone: (213) 683-9100
Stuart N. Senator (SBN 148009) Blanca F. Young (SBN 217533)
Attorneys for Petitioners AbbVie Inc. and Abbott Laboratories
TABLE OF CONTENTS
Introduction...................................................................................9
Procedural and Factual Background................................ 11
Argument........................................................................................ 15
I. Review by this Court Is Unnecessary to Secure Uniformity in California Law or to Settle an Important Question of Law............................................15
A. The Court of Appeal’s Opinion Is Grounded in Settled Principles Embodied in the Constitution, the Text ofthe Pertinent Statutes, and the Available Precedent. ... 15
B. Review of the Court of Appeal’s Opinion IsUnnecessary to Resolve Inconsistencies in California Law.............................................................................................. 18
1. The Only Other Published Court of Appeal DecisionAddressing the Geographic Scope of District Attorneys’ Civil Enforcement Authority Is in Accord.......................... 19
2. The Prior Conflict In Superior Court Decisions IsIrrelevant................................................................................... 20
3. There Is No Other Split of Authority...................................20a. There Are No “Conflicting Interpretations” of the
Safer Rule. 20b. The Opinion Is Not Inconsistent with “Law
Governing UCL Enforcement Actions.” 27
C. The District Attorney’s Contentions that the Opinion“Is Legally Erroneous” Do Not Merit Review....................29
1. Statutory Authorizations for Courts to Award CertainForms of Relief Do Not Expand Local Law Enforcement Officials’ Powers to Obtain It................................................ 29
2. The Petition’s Other Contentions of Error Do Not MeritReview..................................................................................... ..33
2
II. The Court of Appeal Had Jurisdiction toEntertain the Petition and Grant the Writ...........35
Certificate of Word Count.....................................................39
CERTIFICATE OF SERVICE.........................................................40
ANSWER TO PETITION FOR REVIEW......................................40
3
TABLE OF AUTHORITIES
Page(s)
California Cases
Alch v. Superior Court (2004)122 Cal.App.4th 339...................................................................32
Angelucci v. Century Supper Club (2007)41 Cal.4th 160..............................................................................20
Auto Equity Sales, Inc. v. Superior Court (1962)57 Cal.2d 450............................................................................... 19
Baral v. Schnitt (2016)I Cal.5th 376, 393....................................................................... 35
Bd. of Sup’rs of Los Angeles Cty. v. Simpson (1951)36 Cal.2d 671................................................................................ 25
Blue Cross of California, Inc. v. Superior Court (2009)180 Cal.App.4th 138.......................................................... 20, 21
Briggs v. Brown (2017)3 Cal.5th 808, 861....................................................................... 28
Caliber Bodyworks, Inc. v. Superior Court (2005)134 Cal.App.4th 365...................................................................35
California Redevelopment Assn. v. Matosantos (2011)53 Cal. 4th 231.....................................................................23, 24
In re Christian S. (1994)7 Cal.4th 768................................................................................ 24
Clements v. T. R. Bechtel Co. (1954)43 Cal.2d 227............................................................................... 34
Commodore Home Systems, Inc. v. Superior Court (1982)32 Cal.3d 211................................................................................ 36
DAmico v. Bd. of Med. Examiners (1974)II Cal.3d 1........................................................... 15
4
26In re Dennis H. (2001)
88 Cal.App.4th 94.................................................
Feitelberg v. Credit Suisse First Boston, LLC (2005)134 Cal.App.4th 997............................................................ 31, 32
Korea Supply Co. v. Lockheed Martin Corp. (2003)29 Cal.4th 1134.............................................................30, 31, 32
Kraus v. Trinity Mgmt. Servs., Inc. (2000)23 Cal.4th 116....................................................................... 31, 32
Metcalf v. Cty. of San Joaquin (2008)42 Cal.4th 1121............................................................................34
Pacific Gas & Electric Co. v. County of Stanislaus (1997)16 Cal.4th 1143..................................................................... 16, 25
People v. Davis (1905)147 Cal. 346...................................................... 28
People v. Eubanks (1996)14 Cal.4th 580............................................................................ 15
People v. Hy-Lond Enterprises. Inc. (1979)93 Cal.App.3d 734............. passim
People v. McKale (1979)25 Cal.3d 626........................................................... 16, 22, 23, 26
People v. Par mar (2001)86 Cal.App.4th 781..................................................................... 25
People v. Superior Court (Humberto S.) (2008)43 Cal.4th 737.............................................. 15, 16
People v. Superior Court (Solus Industrial Innovations, LLC) (2014)224 Cal.App.4th 33...............................................................16, 24
PH II, Inc. v. Superior Court (1995)33 Cal.App.4th 1680...................................................................36
5
Pitts v. Cty. of Kern (1998)17 Cal.4th 340.............................................................................. 24
Quiroz v. Seventh Ave. Center (2006)140 Cal.App.4th 1256.................................................................29
Räuber v. Herman (1991)229 Cal.App.3d 942.................................................................... 25
Safer v. Superior Court (1975)15 Cal.3d 230....................................................................... passim
State of California v. Altus Fin. (2005)36 Cal.4th 1284....................................................................22, 33
Sullivan v. Oracle Corp. (2011)51 Cal. 4t h 1191............................................................................27
In re Tobacco II Cases (2009)46 Cal.4th 298......................................................................26, 27
Wilson v. 21st Century Ins. Co. (2007)42 Cal.4th 713..............................................................................20
Federal Cases
Whitman v. American Trucking Assns., Inc. (2001)531 U.S. 457........................................................... 24
Constitutional Provisions
Cal. Const., art. V, § 11..........................................................................15
Cal. Const., art. V, § 13................................................................. 15, 26
Cal. Const., art. XI, § 1..........................................................................15
6
California Statutes
Bus. & Prof. Code§ 16750...........§ 16754...........§ 16760...........§ 17200, et seq§ 17203...........§ 17204...........§ 17206...........§ 22948.23.....
....................17
..................22
................... 17
..........passim14, 28, 31, 32....................21, 22........... 28, 32................... 29
Civ. Code§ 731................................................................................................25§ 1695.7......................................................................................... 29§ 1798.90.54................................................................................ 29
Code Civ. Proc.§ 436....................................................................................... 11, 36
Corp. Code§ 5420............................................................................................ 29
Fin. Code§ 4978............................................................................................ 29
Gov. Code§ 11130.5........................................................................................29§ 24009, subd. (a).........................................................................15§ 26057.......................................................................................... 17§ 26500...................... ............................................................ 23, 24§ 26508.......................................................................................... 17§ 26528.......................................................................................... 25
Health & Safety Code§ 1340............................................................................................. 21
Labor Code§ 1073............................................................................................ 29
Pub. Res. Code§ 25966................... 29
7
Court Rules
Rules of Court, rule 8.264.................................................................... 14
Rules of Court, rule 8.500............................................................passim
Other Authorities
1980 Stats., ch. 1094, p. 3507...................................................... 23
9 Witkin, California Procedure (2018 online ed.),Appeal § 915..................................................................................14
9 Witkin, California Procedure (2018 online ed.)Appeal, § 916................................................................................ 35
8
Introduction
The District Attorney of Orange County seeks review of a
Court of Appeal decision that applied basic Constitutional
principles and this Court’s settled precedent to find that the
District Attorney does not have authority to pursue relief under
the Unfair Competition Law, Business & Professions Code
section 17200, et seq. (“UCL”), for violations outside of Orange
County, and that the trial court should have stricken from the
Complaint allegations to the contrary. The Court of Appeal’s
straightforward conclusion was overwhelmingly endorsed by
amici public prosecutors—including the Attorney General—and it
is consistent with the only other published Court of Appeal
decision on the issue. There is no unsettled question for this
Court to resolve and no split of authority below. Review should
therefore be denied. (Rules of Court, rule 8.500(b)(1).).
The District Attorney, under a murky fee arrangement
with private plaintiffs’ lawyers, filed the instant action
demanding relief he has no authority to obtain. In particular, the
District Attorney’s Complaint demands restitution and civil
penalties under the UCL for transactions with consumers
statewide, including in the fifty-seven counties whose citizens he
does not represent and where the citizens have not elected him.
Defendants objected to the District Attorney’s attempt to
prosecute this action in excess of his constitutional and statutory
authority. The Attorney General agreed with Defendants, as did
the California District Attorneys Association (“CDAA”), which “is
composed of the 58 elected district attorneys, numerous city
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attorneys, and their respective deputies, who are charged with
criminal and civil law enforcement in California.”
The Court of Appeal agreed too. It held that a district
attorney’s authority to recover restitution and civil penalties
under the UCL is limited to violations occurring in the county
that elected the district attorney. Consistent with this
determination, it issued a writ requiring the trial court to grant a
motion to strike the Complaint’s contrary allegations.
Nothing in the Court of Appeal’s decision merits the
attention of this Court. The Court of Appeal’s decision simply
implemented the constitutional and statutory allocation of
authority between the Attorney General and the district
attorneys of each county, consistent with existing precedent. It
faithfully followed this Court’s holdings that a district attorney
may not bring civil suits except as clearly and explicitly
authorized by the Legislature. It tracked the text of the UCL,
which by its plain terms does not give a local prosecutor the
power to act extraterritorially. It is consistent with the holding of
the only other decision of the Court of Appeal that addressed the
scope of a district attorney’s enforcement authority under the
UCL. And it is correct in all respects.
The District Attorney’s Petition for Review (“Petition”)
raises more than a dozen arguments, but fails to offer a single
compelling reason justifying this Court’s review. The Petition
claims that the Opinion creates splits with various lines of
precedent. But those “conflicts” are imagined: nothing in the
precedent cited by the District Attorney is irreconcilable with the
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Opinion. The Petition also raises various claims of “error,” but
there was no error, and even if there had been, mere “error” is not
a sufficient basis for review. (Rules of Court, rule 8.500(b)).
Indeed, the Petition underscores why the Court should not
grant review. The Petition’s procedural quibbles with the Court of
Appeal’s reaching the merits are not review-worthy, and show
that substantive issues are not, either. Moreover, most of the
Petition’s arguments—both procedural and substantive—are new
in this Court. “As a policy matter, on petition for review the
Supreme Court normally will not consider an issue that the
petitioner failed to timely raise in the Court of Appeal.” (Rules of
Court, rule 8.500(c)(1)).
The petition should be denied.
Procedural and Factual Background
The underlying lawsuit in this case alleges violations of the
UCL1 against various companies that developed, sold, and
marketed a drug called Niaspan. The complaint was brought on
behalf of the “People of the State of California” by the District
Attorney of Orange County, in affiliation with various private law
firms. (Ex. 7 at p. Alb2). The operative First Amended Complaint
(“Complaint”) seeks, among other remedies, civil penalties and
restitution. (Id. at p. A110.) The District Attorney does not
dispute that he seeks penalties for and restitution based on sales
to consumers statewide, the vast majority of whom reside outside
1 Unspecified citations to statutory sections are to the Business and Professions Code.2 Citations to “Ex.” are to the exhibits to Petitioners’ Appendix, submitted as the record in the Court of Appeal.
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of Orange County. (Ex. 11 at pp. A193-94.)
On February 10, 2017, Defendants filed a Motion to Strike
Portions of Plaintiffs First Amended Complaint (the “Motion”).
(Ex. 8.) Under the authority of Code of Civil Procedure section
436, subdivisions (a) and (b), the Motion sought to strike certain
references to California from the Complaint. The Motion argued
they were “irrelevant,” “improper matter,” and “not drawn ... in
conformity with the laws of this state.” {Id. at pp. All7-19.)
Under the California Constitution, the rules of construction that
apply to statutes granting civil law enforcement authority to local
prosecutors, and appellate court precedent, district attorneys
have no authority to bring claims under the UCL “outside the
geographic boundaries of their local jurisdictions.” {Ibid.)
The District Attorney opposed the Motion on the merits
and the superior court denied it. (Ex. 15 [transcript]; Ex. 16
[brief] at p. A252). Defendants timely sought writ relief in the
Court of Appeal. That court issued an order to show cause, and
the parties then briefed the merits. The Court of Appeal also
accepted amicus briefs. Briefs in support of Defendants’ petition
were submitted by Attorney General Becerra; the California
District Attorneys’ Association, which represents all of the 58
district attorneys in the state and numerous city attorneys; and
the Chamber of Commerce of the United States of America and
the California Chamber of Commerce. Two amicus briefs were
filed in support of the District Attorney, one by the Consumer
Attorneys of California, an advocacy group for plaintiffs’
attorneys, and one on behalf of four city attorneys, the Santa
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Clara County Counsel, and the California State Association of
Counties.
The Court of Appeal held oral argument on March 16, 2018,
and the case was submitted. The Court of Appeal filed its Opinion
and issued its writ of mandate on May 31, 2018.
The Opinion3 rejected various procedural arguments that
the District Attorney had made for the first time in that court.
Particularly relevant here, the Opinion found that Defendants
“present[ed] a concrete legal dispute over the scope of recovery
that a district attorney may seek under the UCL, which is
properly the subject of a motion to strike.” (Opinion at pp. 9-10).
For similar reasons, it concluded the issue was ripe for review.
(Id. at pp. 10-11).
On the merits, the Court of Appeal considered: (1) the
constitutional and statutory allocation of executive power
between the Attorney General and the district attorneys of each
county, (id. at pp. 15-19); (2) the rule, established by this Court
in Safer v. Superior Court (1975) 15 Cal.3d 230, 236—37 (Safer),
that a district attorney’s authority to bring civil actions is not
plenary and should be circumscribed to that specifically granted
by the Legislature, (Opinion at pp. 19-21); (3) the text and
structure of the UCL’s remedial provisions (id. at pp. 21-24);
(4) relevant precedent, including in particular its prior decision in
People v. Hy-Lond Enterprises. Inc. (1979) 93 Cal.App.3d 734,
753, which held that the district attorney had no right “to
3 Citations to the “Opinion” and “Dissent” are to the slip opinion attached as Exhibit 1 to the Petition.
13
surrender the powers of the Attorney General and his fellow
district attorneys to commence, when appropriate, actions in
other counties” under the UCL, (Opinion at pp. 25-32); and (5)
various structural and public policy concerns raised by the
parties and their amici, (id. at pp. 33-38).
Taking these principles into account—including (and
especially) the constitutional problems that could arise from
finding the District Attorneys to have unbounded extraterritorial
authority—the Court of Appeal held that “the District Attorney’s
authority to recover restitution and civil penalties is limited to
violations occurring in the county in which he was elected.” (Id.
at pp. 14-38, capitalization altered.) The Court of Appeal ordered
the superior court to vacate its order denying Defendant’s motion
to strike and to enter a new order “striking the allegations by
which the Orange County District Attorney seeks statewide
monetary relief under the UCL.” (Id. at p. 39.)
Justice Dato dissented. His dissent primarily asserted that
prudential reasons counseled against the Court of Appeal’s
having reached Defendant’s substantive objections to the trial
court’s ruling. (Dissent at pp. 2-8.) The dissent would have
addressed remedial issues only after a trial and entry of
judgment (Id. at p. 4.)
The dissent nonetheless went on to address the merits. It
read Hy-Lond as limited to its particular facts and procedural
posture, and thus found it to be irrelevant. (Id. at pp. 9—10.) And
because the UCL’s remedial statutes permit “the court” to award
civil penalties and restitution (see §§ 17203, 17206, subd. (b)), the
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dissent found “nothing inherently problematic” in permitting the
District Attorney to seek and obtain restitution or civil penalties
on a statewide basis. (Dissent at pp. 10-13.)
On June 15, 2018, the District Attorney filed a Petition for
Rehearing, which the Court of Appeal summarily denied on June
27, 2018. In denying rehearing, the Court of Appeal modified the
Opinion without change to the judgment to correct a typographic
error. The introduction to the dissent was also modified. The
Court of Appeal’s decision became final on June 30, 2018. (Rules
of Court, rule 8.264(b)(1).) The District Attorney filed a Petition
for Review on July 10, 2018.
Argument
I. Review by this Court Is Unnecessary to SecureUniformity in California Law or to Settle an Important Question of Law.“The first and basic ground” for granting review—“[w]hen
necessary to secure uniformity of decision or to settle an
important question of law”—is not present here. (9 Witkin,
California Procedure (2018 online ed.) Appeal, § 915, quoting
Rules of Court, rule 8.500(b)(1).). The Court of Appeal’s Opinion
is grounded in settled constitutional principles and longstanding
precedent; and is consistent with other appellate decisions in
California.
A. The Court of Appeal’s Opinion Is Grounded in Settled Principles Embodied in the Constitution, the Text of the Pertinent Statutes, and the Available Precedent.
The Court of Appeal’s Opinion reflects a straightforward
application of the Court’s long-established interpretations of
15
constitutional, structural, and statutory principles. The Opinion
is hardly revolutionary in concluding that a locally elected official
cannot bring civil enforcement actions to recover remedies on
behalf of the citizens of fifty-seven other counties whom he does
not represent and who never cast a single vote for his office.
As the Opinion explains, the State Constitution makes the
Attorney General “the chief law officer of the State” with “the
duty ... to see that the laws of the State are uniformly and
adequately enforced.” (Cal. Const., art. V, § 13.) The Attorney
General is elected on a statewide basis. (Id., art. V, § 11.) “[I]n the
absence of any legislative restriction, (he) has the power to file
any civil action or proceeding directly involving the rights and
interests of the state, or which he deems necessary for the
enforcement of the laws of the state, the preservation of order,
and the protection of public rights and interest.” (.D’Amico v. Bd.
of Med. Examiners (1974) 11 Cal.3d 1, 14-15.)
In contrast to the statewide authority expressly vested in
the Attorney General, the “district attorney of each county is the
public prosecutor, vested with the power to conduct on behalf of
the People all prosecutions for public offenses within the county.”
(People v. Eubanks (1996) 14 Cal.4th 580, 589.) As a county
official, a district attorney is elected by the citizens of only his or
her county. (Cal. Const., art. XI, § 1; Gov. Code, § 24009, subd.
(a).) Although district attorneys’ criminal enforcement powers are
plenary, their authority to bring civil actions is not. (People v.
Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 753
(Humberto S.).) Indeed, “the Legislature has manifested its
16
concern that the district attorney exercise the power of his office
only in such civil litigation as that lawmaking body has, after
careful consideration, found essential.” (Safer, supra, 15 Cal.3d
230 at p. 236.)
Thus, as is clear from this Court’s precedents, in examining
a district attorney’s authority to bring civil litigation, courts must
look to whether the action is specifically and affirmatively
authorized by statute. (See, e.g., Humberto S., supra, 43 Cal.4th
at p. 753; Pacific Gas & Electric Co. v. County of Stanislaus
(1997) 16 Cal.4th 1143, 1155-1156 (.PG&E); People v. McKale
(1979) 25 Cal.3d 626, 633 (McKale)] Safer, supra, 15 Cal.3d at pp.
235-237). Subsequent Court of Appeal decisions, including the
Opinion, have uniformly understood this rule4 to mean that
Legislative silence means the district attorney has no authority
to bring civil claims. (See, e.g., People v. Superior Court (Solus
Industrial Innovations, LLC) (2014) 224 Cal.App.4th 33, 42
(Solus), review denied Jun. 18, 2014, S217653. [“Safer . . . makes
clear that the Legislature’s traditional practice has been to
affirmatively specify the circumstances in which a district
attorney can pursue claims in the civil arena, not the
circumstances in which he cannot.” emphasis original]; see also
Opinion at pp. 19-20.)
The Legislature has enacted several statutes that expressly
expand district attorneys’ authority to act jointly with others to
4 The District Attorney’s Petition refers to this interpretive cannon as the “Safer rule.” (See Petition at pp. 26-32.) For consistency and brevity, Defendants will follow the same convention.
17
bring claims outside of his or her home county in specifically
enumerated circumstances. (Gov. Code, §§ 26057, 26508.)
Similarly, other statutes passed by the Legislature expand
district attorneys’ authority to enforce specific laws
extraterritorially. (See, e.g., § 16750, subd. (g), § 16760, subd. (g).)
These statutes show that by “specifying a county district
attorney’s duties with respect to civil matters, the Legislature
recognizes the” ordinary jurisdictional limitations that apply to
the civil authority of district attorneys. (Opinion at p. 20.)
As the Opinion explains, these well-established principles
resolve the question presented by Defendants’ writ petition. “The
text of the UCL provides no basis to conclude the Legislature
intended to grant local prosecutors extraterritorial jurisdiction to
recover statewide monetary relief.” (Opinion at p. 32.) This
conclusion was supported in the Court of Appeal by the Attorney
General and the California District Attorneys’ Association,
reflecting an overwhelming consensus among prosecutors at all
levels of state government who are charged with enforcing the
UCL. The Opinion merely reinforces what the Constitution, the
text of the statute, and relevant precedent already make clear.
B. Review of the Court of Appeal’s Opinion Is Unnecessary to Resolve Inconsistencies in California Law.
The Opinion does not create a split in authority among
decisions of the Court of Appeal. The only other Court of Appeal
decision that addresses whether a district attorney has authority
to enforce the UCL outside of his own county is Hy-Lond, which
agrees that a district attorney does not. Unable to identify any
18
inconsistency in the decisions of the Court of Appeal, the District
Attorney claims that the Opinion is at odds with various other
principles and legal rules. The “conflicts” proposed by the District
Attorney, however, do not exist. Indeed, the District Attorney did
not even raise most these purported “conflicts” below, which both
is an independent reason for denying review and shows that they
are not conflicts at all. (Rules of Court, rule 8.500(c)(1).)
1. The Only Other Published Court of Appeal Decision Addressing the Geographic Scope of District Attorneys’ Civil Enforcement Authority Is in Accord.
As noted, there is no split in the Court of Appeal as to
whether the District Attorney may pursue statewide relief under
the UCL. The only other published decision on the issue is Hy-
Lond, supra, 93 Cal.App.3d 734, which concluded that the Napa
County District Attorney had no authority to “surrender the
powers of the Attorney General and his fellow district attorneys
to commence, when appropriate, actions in other counties.” (Id. at
p. 753.) The Court of Appeal had “no difficulty applying Hy-
Lond’s principles to bar a district attorney’s unilateral effort to
seek restitution and civil penalties for UCL violations occurring
outside his or her own jurisdiction.” (Opinion at p. 25—30).
The District Attorney does not, and cannot, argue that Hy-
Lond conflicts with the Court of Appeal’s Opinion. Instead, he
proclaims that Hy-Lond’s distinct procedural posture renders the
portions of it relied upon in the Opinion “dicta.” (Petition at p. 18;
see also Dissent at pp. 9-10.) While it is true that Hy-Lond arose
in the context of a district attorney’s state-wide settlement of
19
UCL claims for monetary and injunctive relief, that does not
render Hy-Lond’s determination “dicta.” And it certainly does not
mean that Hy-Lond is in conflict with the Opinion; it is not.
2. The Prior Conflict In Superior Court Decisions Is Irrelevant.
Unable to cite a single published Court of Appeal decision
holding that a district attorney has unilateral authority to seek
statewide relief under the UCL, the District Attorney points to
conflicting trial court orders that predate the Opinion. (Petition
at pp. 22-24.) The Court of Appeal’s resolution of that conflict,
however, is a reason for this Court to deny review, not to grant it.
It is well established that “[djecisions of every division of
the District Courts of Appeal are binding upon all the . . .
superior courts of this state[.]” (.Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) Guidance from this
Court is unnecessary to “secure uniformity of decision” among the
superior courts, (Rules of Court, rule 8.500(b)(1)): the Court of
Appeal’s decision already did that.
3. There Is No Other Split of Authority.The District Attorney alternatively suggests that the
general principles relied upon by the Court of Appeal are subject
to “conflicting interpretations” or otherwise unsettled. Again, he
is wrong.
a. There Are No “ConflictingInterpretations” of the Safer Rule.
As discussed supra, § I.A, this Court has long held that
district attorneys may prosecute civil litigation only when and to
the extent they are specifically authorized to do so by the
20
Legislature. For the first time in his Petition, the District
Attorney claims that the Court of Appeal inconsistently or
incorrectly applied this so-called Safer rule. He is wrong.
As an initial matter, the Court should not consider this
argument because the District Attorney did not raise it below.
(Rules of Court, rule 8.500(c)(1) [“As a policy matter, on petition
for review the Supreme Court normally will not consider an issue
that the petitioner failed to timely raise in the Court of Appeal.”];
Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 726
[declining to address an issue that petitioner did not brief to the
court of appeal]; Angelucci v. Century Supper Club (2007) 41
Cal.4th 160, 180 [declining to reach various theories undeveloped
in the Court of Appeal or trial court].) Defendants’ writ petition
extensively discussed Safer and its progeny, (see Petition for Writ
of Mandate at pp. 29—34), but the District Attorney’s return in
the Court of Appeal did not cite Safer, let alone raise the many
arguments about Safer that now appear in the Petition. (See
generally Return to Petition for Writ of Mandate or Prohibition at
pp. 5-7 [table of authorities].) In addition to affording a
procedural basis to deny review, the District Attorney’s failure to
address address Safer before the Court of Appeal also speaks
volumes as to the weakness of his argument.
On the merits, the Court of Appeal did not err in applying
Safer. First, contrary to what the Petition claims, Blue Cross of
California, Inc. v. Superior Court (2009) 180 Cal.App.4th 138
(Blue Cross) did not eschew the Safer rule in favor of permitting a
local prosecutor to bring UCL claims so long as “no statute
21
provides to the contrary.” (Petition at pp. 27-28.) Blue Cross
concerned whether a wholly different statute could be interpreted
to “strip” a local prosecutor of the authority the UCL otherwise
granted to him; it did not address the powers granted to the local
prosecutor under the UCL itself, which is the issue here.
In Blue Cross, a city attorney brought a claim against a
managed health care service plan under the “unlawful” prong of
the UCL, predicated on violations of the Knox-Keene Act, Health
& Safety Code, section 1340 et seq. (Blue Cross, supra, 180
Cal.App.4th at pp. 1242-44.) The defendants acknowledged that
section 17204 of the UCL specifically authorized the city attorney
to bring claims to enjoin conduct made unlawful by another
statute, but argued that the Knox-Keene Act “displac[ed] and
subordinat[ed]” that authority by giving the California
Department of Management Health Care regulatory and
enforcement authority over health plans. {Id. at p. 1249).
The court disagreed, explaining, “the fact that there are
alternative remedies under a specific statute does not preclude a
UCL remedy, unless the statute itself provides that the remedy is
to be exclusive.” {Ibid, [quoting State of California v. Altus Fin.
(2005) 36 Cal.4th 1284, 1303 {Altus).].) In the absence of a statute
stating that said a city attorney could not use the Knox-Keene
Act as the basis of UCL unlawfulness claim, the grant of
authority in section 17204 of the UCL was all the authority the
city attorney needed to seek injunctive relief. {Blue Cross, supra,
180 Cal.App.4th at pp. 1251-55; cf. Altus, surpa, 36 Cal.4th at p.
1304 [finding that an exclusive remedies provision in the
22
Insurance code was such an exception].)
This holding is fully consistent with Safer and the Opinion,
because section 17204 provided express authorization for the city
attorney to bring the unlawfulness claim he alleged. (Accord
McKale, supra, 25 Cal.3d at p. 633.)
The District Attorney also erroneously claims that the
Safer rule applies only to a local prosecutor’s representation of
private parties in civil litigation, not to his bringing actions in the
name of “the People.” (Petition at p. 29.) But he cites no case to
support this proposition and Safer certainly does not suggest that
its holding was so limited. To the contrary, Safer rested on the
principle—equally applicable to actions in the name of “the
People”—that “[by] the specificity of its enactments, the
Legislature has manifested its concern that the district attorney
exercise the power of his office only in such civil litigation as that
lawmaking body has, after careful consideration, found
essential.” {Safer, supra, 15 Cal.3d at p. 236). Indeed, in “set[ing]
forth illustrative statutes which specifically empower a district
attorney to bring a civil action,” Safer listed a wide variety of civil
enforcement actions—it did not limit these illustrations of its rule
to the narrow circumstances proposed by the District Attorney.
{Ibid, [citing, inter alia, Bus. & Prof. Code, § 16754, which
permits a district attorney to “enforce certain business regulation
laws;” Gov. Code, § 26521, which authorizes a district attorney to
bring actions to collect fines; Gov. Code, § 26528, which
authorizes suits by district attorneys to abate public nuisances
“in the name of the People”].). Given Safer’s reasoning, it is no
23
surprise that it has been applied broadly—including by this
Court in a UCL enforcement case brought by a district attorney.
(See McKale, supra, 25 Cal.3d at p. 633.)
Next, the District Attorney—again citing no case in
support—argues that a 1980 amendment to Government Code
section 26500 affords him plenary authority to bring civil claims
as the “public prosecutor, except as otherwise provided by law.”
(Petition at p. 30-31.) But as Safer itself explains, section 26500’s
reference to “public prosecutor” applies only to “matters
criminal”; it does not address civil enforcement at all. {Safer,
supra, 15 Cal.3d at p. 237 fn. 11.)
The 1980 amendment did not alter that rule. The bill was
principally addressed to technical changes in the manner in
which misdemeanors charges are filed. (Stats. 1980, ch. 1094, p.
3507.) Nothing in the bill or its legislative history5 purports to
redefine “public prosecutor,” or to legislatively reverse this
Court’s decision in Safer, decided just five years earlier.
Under the circumstances, the District Attorney’s suggestion
that the Legislature so drastically changed the law without
expressing a clear intent to do so “suffers from a surface
implausibility.” {California Redevelopment Assn. v. Matosantos
(2011) 53 Cal. 4th 231, 260.) Indeed, it would be “unusual in the
extreme,” for the Legislature “to adopt so fundamental of a
change only by way of implication,” in a bill “facially dealing
with” completely unrelated matters. {Ibid.) The “drafters of
5 See Request for Judicial Notice in Support of Defendants’ Answer to Petition for Review, Ex. A.
24
legislation ‘do not, one might say, hide elephants in mouseholes.”’
{Id. at p. 261, brackets omitted, quoting Whitman v. American
Trucking Assns., Inc. (2001) 531 U.S. 457, 468; see also In re
Christian S. (1994) 7 Cal.4th 768, 782 [“We are not persuaded the
Legislature would have silently, or at best obscurely, decided so
important and controversial a public policy matter and created a
significant departure from the existing law.”].).)
It is thus unsurprising that more recent decisions of both
this Court and the Court of Appeal continue to read Government
Code section 26500 as applying only to criminal matters. (See
Pitts v. Cty. of Kern (1998) 17 Cal.4th 340, 359 [citing § 26500 as
addressed to the district attorney’s role “when prosecuting
criminal violations of state law”]; Solus, supra, 224 Cal.App.4th
at pp. 41—42 [rejecting the District Attorney’s argument that
§ 26500 provides him plenary power to bring civil enforcement
cases “except as otherwise provided by law”].)
Given that being the “public prosecutor” has always
entailed only criminal prosecution, the Legislature’s 1980
addition of the phrase “except as otherwise provided by law”
suggests a Legislative recognition that a district attorney’s non
criminal litigation activity must, in contrast, be expressly
authorized by statute—which essentially codifies Safer. Thus,
even after the 1980 amendment, this Court has continued to
apply the Safer rule to situations where district attorneys pursue
civil litigation. (See PG&E, supra, 16 Cal.4th at p. 1156
[recognizing that district attorneys can bring claims under the
Cartwright Act only because a statute expressly authorizes them
25
to do so, citing Safer].)
Finally, the District Attorney contends that the Opinion is
contrary to a rule that “a district attorney has the authority to
participate in noncriminal actions or proceedings that are in aid
of or auxiliary to the district attorney’s usual duties.” (Petition at
p. 31, quoting People v. Parmar (2001) 86 Cal.App.4th 781, 798
(Parmar).) Although the District Attorney characterizes three
cases as supporting the proposition that “UCL actions, although
civil in nature, are ‘in aid of or auxiliary to’ the district’s exercise
of his police power in criminal prosecutions,” (Petition at p. 31),
none of them support his claim. Nor do they have anything at all
to do with “UCL actions.” Two cases address a district attorney’s
authority to bring claims for public nuisance—authority that,
consistent with Safer, is expressly provided statute. (See Parmar,
supra, 86 Cal.App.4th at p. 798 [noting authority provided to
district attorney by Gov. Code, § 26528 and Civ. Code, § 731]; Bd.
of Sup’rs of Los Angeles Cty. v. Simpson (1951) 36 Cal.2d 671, 675
[same].). The third case permitted a district attorney to represent
the county of his jurisdiction in connection with administrative
welfare benefit proceedings, as auxiliary to his duty to prosecute
welfare fraud and to collect unpaid child support in that county.
(Räuber v. Herman (1991) 229 Cal.App.3d 942, 951-53.)6
6 The Court of Appeal subsequently distinguished Räuber, holding that absent specific statutory authorization, the Safer rule barred district attorneys from representing county wards in other civil proceedings less intertwined with criminal enforcement and where the county was already represented by counsel. (See In re Dennis H. (2001) 88 Cal.App.4th 94, 102.) As noted above, the California constitution assigns to the Attorney
26
Regardless, this Court has applied the Safer rule to the question
of what civil litigation claims a district attorney may pursue
under the scope of authority afforded by the UCL. (McKale,
supra, 25 Cal.3d at p. 633.)
In sum, the Petition does not identify any inconsistency in
the Opinion’s application of the Safer rule; there is none.
b. The Opinion Is Not Inconsistent with “Law Governing UCL Enforcement Actions.”
Nor is there a conflict between the Opinion and In re
Tobacco II Cases (2009) 46 Cal.4th 298, 320 (Tobacco II). The
Petition argues that, by requiring the District Attorney to
establish that UCL violations occurred in Orange County, the
Opinion somehow runs afoul of Tobacco IIs rule that “under the
UCL, relief is typically ‘available without individualized proof of
deception, reliance and injury.’” (Petition at pp. 25-26, quoting
Tobacco II, supra, 46 Cal.4th at p. 320.) But this conflates the
elements of a fraud-based UCL claim (the likes of which are not
asserted here) with the extent of the District Attorney’s authority
and is not inconsistent with the Opinon.
Tobacco II concerned the extent to which the typical fraud
concepts of reliance and causation are also applicable to UCL
claims that are based on deceptive advertising. (Tobacco II,
supra, 46 Cal.4th at p. 312 [“We are here concerned with the
third prong of the statute—an allegation of a fraudulent business
act or practice”]; id. at pp. 321-22.) Here, by contrast, the District
General the duty to enforce non-criminal California law on a statewide basis.
27
Attorney’s theory centers on an allegedly anticompetitive
settlement of patent litigation that allegedly denied consumers
access to a lower-priced generic version of Niaspan. (See Ex. 7 at
pp. 86-102.) The fraud concepts addressed in Tobacco II are
irrelevant here.
The Petition also cites Justice Baxter’s concurring and
dissenting opinion in Tobacco II. (Petition at pp. 35-36.) But read
in context, the general proposition in the cited language—that
“Public enforcement suits are not constrained by Proposition 64’s
class action restrictions, and in such actions, the court may order
the full range of remedies specified in the statute”—has no
bearing on whether the remedial provisions of the UCL permit
local prosecutors to seek statewide relief. (See Tobacco II, supra,
46 Cal.4th at p. 337 (cone. & dis. opn. of Baxter. J), italics
original.) That issue was not addressed in Tobacco II, a private
enforcement action.
Moreover, there is nothing unusual about the Opinion’s
requirement that the District Attorney prove that a UCL
violation occurred within his jurisdiction. The same requirement
would exist with respect to statewide claims, because the UCL
does not operate extraterritorially. (See Sullivan v. Oracle Corp.
(2011) 51 Cal.4th 1191, 1207.) The District Attorney alleged that
Niaspan was sold throughout the United States. (See Ex. 8 at p.
106.) Just as it would not offend the UCL to require the Attorney
General to prove conduct within California’s borders to bring a
statewide claim relating to sales of Niaspan, it does not offend
the UCL to require the District Attorney to prove violations
28
within Orange County.
C. The District Attorney’s Contentions that the Opinion “Is Legally Erroneous” Do Not Merit Review.
Review in this Court also is not merited based on the
District Attorney’s contention that the “Opinion is legally
erroneous[.]” (Petition at p. 34.) As an initial matter, the
hodgepodge of “errors” asserted in the Petition are not errors at
all. In any event, none of these meets the prerequisites for review
in this Court. (Rules of Court, rule 8.500(b)(1); see Briggs v.
Brown (2017) 3 Cal.5th 808, 861; People v. Davis (1905) 147 Cal.
346, 348.)
1. Statutory Authorizations for Courts to Award Certain Forms of Relief Do Not Expand Local Law Enforcement Officials’ Powers to Obtain It.
The District Attorney claims that because the UCL’s
remedial provisions are framed in terms of the authority of “the
court” to award relief, (see §§ 17203, 17206), a court may award
any relief authorized by the UCL, regardless of whether a
particular plaintiff itself is permitted to seek or obtain it. The
only prerequisites, according to the Petition, are that the plaintiff
has standing to bring some UCL claim and that the court has
jurisdiction to entertain it. (Petition at p. 35.) This argument was
not raised in the District Attorney’s briefing below, (Compare
Petition at pp. 34-36 with Return to Petition for Writ of Mandate
or Prohibition), and the Court should not consider it (Rules of
Court, rule 8.500(c)(1)). It is, in any event, manifestly wrong.
A statutory authorization for a court to award a type of
29
relief is not a license for a court to grant that relief to anyone who
states an actionable claim. References to a “court may” or a “court
must” in the context of remedial statutes simply reflect a common
drafting practice employed to permit a court to award the
remedies to a plaintiff who is permitted to obtain it and under
facts that merit the award.7 These general authorizations do not
preclude courts from determining that a plaintiff lacks standing
to recover a particular court-awardable remedy at the pleading
stage. (See, e.g., Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1284 [affirming an order granting a motion to
strike plaintiffs’ prayer for attorneys’ fees, where the Elder Abuse
Act, Welf. & Inst. Code, § 15657, provided that “[t]he court shall
award to the plaintiff reasonable attorney’s fees and costs,” but
the Court of Appeal held that plaintiffs, whose relative was
7 (See generally Bus. & Prof. Code, § 22948.23 [a “court may enjoin a person” who provides the operation of a voice recognition feature without informing the consumer of the feature]; Civ.Code, § 1695.7 [“the court may award exemplary damages or equitable relief’ for violations of the Home Equity Sales Contracts Act]; Civ. Code, § 1798.90.54 [“The court may award” a number of remedies for harm caused by unauthorized access to an automated license plate recognition system]; Corp. Code, § 5420 [court “may award punitive damages” where party, intending to defraud the corporation, made a distribution]; Fin. Code, § 4978 [a “court may, in addition to any other remedy, award punitive damages to” a consumer harmed by predatory lending]; Gov. Code, § 11130.5 [a “court may award costs and attorney’s fees to the plaintiff’ for violation of the Open Meetings Act];. Labor Code, § 1073 [“The court may preliminarily or permanently enjoin the continued violation of this chapter.”];Pub. Res. Code, § 25966 [“The court may make such orders or judgments ... as may be necessary to prevent” the sale of residential gas appliances with a pilot light].)
30
subject to elder abuse, lacked standing to obtain relief under the
Act].)
Notably, neither the dissent nor the Petition cites any case
adopting the District Attorney’s position that a court may award
any relief mentioned in the UCL regardless of the plaintiffs
standing to seek it. In fact, that position is inconsistent with this
Court’s longstanding interpretation of the UCL. In Korea Supply
Co. v. Lockheed Martin Corp. (2003), 29 Cal.4th 1134, the Court
held that a demurrer was properly sustained where the plaintiff
sought monetary relief that was not available to it, even though
the court could have imposed monetary relief had it been sought
by another plaintiff.
The plaintiff, Korea Supply, alleged that the defendant, its
competitor, violated the UCL when it won a competitive bid for a
Korean government defense contract by bribing Korean officials.
(Id. at p. 1140.) It was undisputed that the allegations, if true,
would violate the UCL. But Korea Supply did not have an
ownership interest or any other vested interest in the money it
sought to recover from the defendant, and so it did not have a
claim to restitution—the only form of monetary relief authorized
in an individual UCL action. (Id. at pp. 1148-1149). Because the
UCL did not authorize a plaintiff in Korea Supply’s position to
pursue monetary relief under the statute, the trial court
appropriately resolved the issue at the pleading stage by granting
defendant’s demurrer on the UCL claim. (Id. at p. 1166.)
As now, the UCL’s remedial provisions authorized the court
to “make such orders or judgments, ... as may be necessary to
31
restore to any person in interest any money or property, real or
personal, which may have been acquired by means of such unfair
competition.” (§ 17203). But that did not require the trial court in
Korea Supply to hear the case through trial or authorize it to sua
sponte fashion a remedy in that action for anyone who might
have been affected by the alleged violation. Instead, the Court
confirmed that such remedies should be sought in due course by
the “direct victims” authorized to pursue them. (Korea Supply,
supra, 29 Cal.4th at p. 1152 [emphasizing that the UCL allows
“any consumer to combat unfair competition by seeking an
injunction against unfair business practices” and that “[a]ctual
direct victims of unfair competition may obtain restitution as
well.”]). The procedural posture here is not meaningfully
distinguishable from Korea Supply. (See also Feitelberg v. Credit
Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1006
(.Feitelberg) [affirming grant of motion to strike prayer for
nonrestitutionary disgorgement from plaintiffs complaint].)
The scant authority cited by the District Attorney does not
support his position. In fact, Kraus v. Trinity Mgmt. Servs., Inc.
(2000) 23 Cal.4th 116, actually cuts against his argument. In
Kraus, the Court ruled that a single plaintiff bringing a pre-
Proposition 64 representative action could not obtain an order
requiring a defendant to disgorge all of its UCL-violative profits
into a “fluid recovery fund.” {Id. at p. 137.) As in Korea Supply,
the Court effectively held that, notwithstanding the trial court’s
“broad equitable powers” under the UCL, the trial court could not
award a plaintiff relief she had no legal right to recover. {Kraus,
32
supra, 23 Cal.4th at p. 137.) As the Court explained, “[t]he court’s
inherent equitable power may not be exercised in a manner
inconsistent with the legislative intent underlying a statute[.]”
{Id. at p. 132 fn. 14.) And although Kraus was an appeal of a
post-judgment decision, nothing in the opinion suggests the trial
court needed to hold a trial before the legal issue could be
appropriately decided. (Cf. id. at p. 123 & fn. 4 [noting, without
apparent controversy, that the trial court had sustained a
demurrer to a paragraph of the complaint demanding a civil
penalty, presumably because that relief is not available to a
private litigant under § 17206]. Later cases have had no difficulty
applying Kraus to the pleadings. (See Alch v. Superior Court
(2004) 122 Cal.App.4th 339, 408 [affirming grant of demurrer
based on Kraus’s limits on relief under § 17203]; Feitelberg,
supra, 134 Cal.App.4th at p. 1006 [affirming motion to strike
based on Kraus].) So too here, the District Attorney has no ability
to seek some of the relief he seeks under the UCL, a pleading
defect properly resolved at the pleading stage. (See Korea Supply,
supra, 29 Cal.4th at pp. 1148—1149)
2. The Petition’s Other Contentions of Error Do Not Merit Review.
The other supposed “errors” identified in the Petition are
likewise neither erroneous nor appropriate grounds for review.
First, the Petition makes the claim that the Opinion
invented a new “written consent requirement” when it explained
that “in the absence of written consent by the Attorney General
and other county district attorneys, the District Attorney must
confine . . . monetary recovery [under the UCL] to violations
33
occurring within the county he serves.” (See Petition at p. 36,
citing Opinion pp. 4-5.) But this limitation was already in place
under settled Constitutional principles and longstanding
precedent and is consistent with appellate decisions in California.
The language cited in the Petition summarizes a later section of
the Opinion that made clear that it was not removing available
procedural avenues for a local prosecutor who believes “there is
public benefit to a multi-jurisdictional action.” (Opinion at 37-38
& fn. 37.) Its non-controversial observation that a district
attorney may pursue relief for UCL violations outside his county
by joining with other local prosecutors or the Attorney General
was collateral to its holding, and does not justify review.
Next, the District Attorney argues that the Attorney
General does not have exclusive standing to bring statewide UCL
actions. (Petition at p. 38.) He relies on Altus, supra, 36 Cal.4th
1284, which held that a legislative grant of exclusive enforcement
authority to the Insurance Commissioner was an “express limit
on the authority of the Attorney General to seek a restitutionary
remedy under the UCL.” {Id. at p. 1303.) But there is nothing
unusual about the legislature’s decision to vest statewide
enforcement authority in a different statewide elected
constitutional officer, who is tasked by the state constitution to
oversee a specific subject area like insurance. Nor does this
suggest that the UCL silently vests the District Attorney with the
authority to bring extraterritorial and statewide claims. It does
not, and it certainly does not merit granting review.
The District Attorney also argues that the trial court was
34
within its discretion to deny Defendants’ motion to strike because
the allegations subject to the motion are potentially relevant to
various issues raised in the Complaint other than the geographic
scope of available monetary relief. (Petition at pp. 39-40.) Given
that the clear aim of the allegations was to seek statewide
relief—the District Attorney’s superior court opposition brief did
not contest the point (see Ex. 11 at p. 196)—the District Attorney
offers no explanation why the allegations are nonetheless so
“essential to a cause of action,” that a trial court could not strike
them. (See Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227,
242). And regardless, the Petition offers no reason for this Court
to step in to evaluate such a fact-bound, case-specific procedural
issue. (See Metcalf v. Cty. of San Joaquin (2008) 42 Cal.4th 1121,
1129 [a “fact-specific issue does not present an issue worthy of
review”].)
Finally, the District Attorney makes the conclusory claim
that the Opinion is bad policy. (Petition at 40.) This too is both
incorrect and not an argument that merits review.
II. The Court of Appeal Had Jurisdiction to Entertain the Petition and Grant the Writ.The District Attorney also invokes Rules of Court, rule
8.500(b)(2), which authorizes review when the Court of Appeal
did not have jurisdiction. (Petition at pp. 32-34). But that rule is
a vestige of the past that has no application here. The “reason for
this provision”—to allow the Supreme Court to hear cases that
should have been directly appealed to it, but were mistakenly
filed in the Court of Appeal—“has ceased to exist” in civil cases,
as the Constitution no longer allocates appellate jurisdiction
35
between the Supreme Court and the Court of Appeal based on the
nature of the action or proceeding. (9 Witkin, California
Procedure (2018 online ed) Appeal, § 916.) “It is difficult to
conceive of a situation in which the rule would now apply,” {ibid.)
and the Petition fails to explain why it has any relevance here.
The Petition’s argument that the Court of Appeal should
not have granted the writ because the issues were purportedly
not ripe (Petition at p. 32) is just a claim of procedural error,
which does not merit this Court’s review. The Petition essentially
acknowledges as much: despite “maintain[ing] that the Writ
Petition was premature,” the Petition urges the Court to bypass
that question and “proceed based on the appellate record.” {Id. at
p. 33). As discussed above, however, there is no reason to review
the merits of the Court of Appeal’s decision.
The Court of Appeal acted well within its jurisdiction to
entertain the petition and issue the writ. A motion to strike is an
“appropriate procedural device” to challenge allegations that
purport to seek relief that is unavailable to the plaintiff as a
matter of law.8 {Caliber Bodyworks, Inc. v. Superior Court (2005)
134 Cal.App.4th 365, 385; see also Baral v. Schnitt (2016) 1
Cal.5th 376, 393 [“the conventional motion to strike ... is well
understood as a way to challenge particular allegations”]; PH II,
Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [defective
8 The Petition repeatedly complains that the allegations at issue were “true factual allegations.” (Petition at pp. 7, 12, 36.) The purpose of striking them, however, is not that they are false, but that, even if true, they are “irrelevant” because they address
36
portion of a cause of action is subject to a conventional motion to
strike].) And it is well within the Court of Appeal’s power to
address such issues on a writ petition, particularly where, as
here, they relate to the trial court’s proper exercise of its
jurisdiction. (See Commodore Home Systems, Inc. v. Superior
Court (1982) 32 Cal.3d 211, 213-215 [considering petition of writ
of mandate challenging superior court’s denial of motion to strike
portions of the complaint relating to punitive damages, and
deciding on the merits whether such damages were recoverable];
Safer, supra, 15 Cal.3d at p. 242 [For the superior court to permit
a district attorney to prosecute an action outside the scope of the
“statutorily authorized procedures for such proceedings and in
excess of his authority” “establishes grounds for our issuance of a
writ of prohibition”]).
relief that the District Attorney cannot obtain as a matter of law. (Code Civ. Proc., § 436.)
k k *k
The Court should deny the District Attorney’s petition for
review.
Dated: July 30, 2018
Respectfully Submitted,
Michael Shipley (SBN 233674)Jay P. Lefkowitz (phv forthcoming) Yosef Mahmood (SBN 295976)
Attorneys for Teua Pharmaceuticals USA, Inc.; Duramed Pharmaceuticals, Inc.; Duramed Pharmaceuticals Sales Corp., and Barr Pharmaceuticals Inc.
MUNGER, TOLLES & OLSON LLP
Jeffrey I. Weinberger (SBN 56214) Stuart N. Senator (SBN 148009) Blanca F. Young (SBN 217533)
Attorneys for Petitioners AbbVie Inc. and Abbott Laboratories
38
Certificate of Word Count
I, Michael Shipley, hereby certify that in accordance with
Rules of Court, rule 8.504(d)(1), I have employed the word count
feature of Microsoft Word to verify that the number of words
contained in this brief—including footnotes but not including
materials exempted under Rules of Court, rule 8.504(d)(3)—is
7,635 words.
Dated: July 30, 2018
39
CERTIFICATE OF SERVICE
I am employed in the County of Los Angeles, State of
California. I am over the age of 18 and not a party to the within
action; my business address is 333 South Hope Street, 29th Floor,
Los Angeles, California 90071.
On July 30, 2018, I hereby certify that I have electronically
served the documents listed below in the manner set forth below.
ANSWER TO PETITION FOR REVIEWon the following interested parties in this action:
ORANGE COUNTY DISTRICT ATTORNEY
Tony Rackauckas, District Attorney Joe D’Agostino, District Attorney Kelly A. Emby, Deputy D.A.,401 Civic Center Drive Santa Ana, CA 92701-4575 Telephone: (714) 834-3600 Facsimile: (714) 648-3636 [email protected]
BLANK ROME, LLP Yosef Adam Mahmood 2029 Century Park E. Fl. 16 Los Angeles, California 90067 Telephone: (424) 239-3400 [email protected] Attorneys for Petitioner Abbott Laboratories
ROBINSON CALCAGNIE, INC.
Mark P. Robinson, Jr.Kevin F. Calcagnie Daniel S. Robinson Scot D. Wilson 19 Corporate Plaza Drive Newport Beach, CA 92660 Telephone: (949) 720-1288 Facsimile: (949) 720-1292 [email protected] [email protected] [email protected]
LAW OFFICE OF VALERIE T.MCGINTYValerie T. McGinty524 Fordham RoadSan Mateo, California 94402Telephone: (415)[email protected] for Consumer Attorneysof California ~ Amicus Curiae
40
CALIFORNIA DEPARTMENT OF JUSTICEOffice of the Attorney General Xavier BecerraAttorney General of California Niklas A. AkersSenior Assistant Attorney General Michelle R. Van Gelderen Supervising Deputy Attorney General David A. Jones Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 269-6351 Facsimile: (213) 897-4951 [email protected]
Attorney General of California - Amicus Curiae
LAW OFFICE OF VALERIE T.MCGINTYValerie T. McGinty524 Fordham RoadSan Mateo, California 94402Telephone: (415) [email protected]
Attorneys for Consumer Attorneys of California ~~ Amicus Curiae
SAN DIEGO COUNTY DISTRICT ATTORNEY’S OFFICEThomas A. Papageorge 330 W. Broadway, Suite 750 San Diego, California 92101 Telephone: (619) 531-3971 thomas ,papageorge@sdcda. org
Attorneys for California District Attorneys Association - Amicus Curiae
CITY AND COUNTY OFSAN FRANCISCODennis J. Herrera, CityAttorneyYvonne R. MereOwen ClementsFox Plaza, 1390 Market St.,6th FI.San Francisco, California 94102(415) 554-3874 [email protected] [email protected] [email protected]
Attorneys for Consumer Attorneys of California - Amicus Curiae
CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION Mark Zahner 921 11th Street, #300 Sacramento, California 95814 Telephone: (916) 443-2017 [email protected]
Attorneys for California District Attorneys
OFFICE OF THE SAN DIEGO CITY ATTORNEY Kathryn Turner Mara Elliott1200 3rd Avenue, Suite 700 San Diego, California 92101 Telephone: (619) 533-5600 [email protected] [email protected] [email protected]
Attorneys for City of San Diego - Amicus Curiae
41
LOS ANGELES CITY ATTORNEYS’ OFFICE Michael Nelson Feuer 800 City Hall East 200 N. Main Street Los Angeles, California 90012 (213) 978-8100 mike.n. feuer@lacity. org
Attorneys for City of Los Angeles - Amicus Curiae
OFFICE OF THE SAN JOSECITY ATTORNEYNora Frimann200 E. Santa Clara StreetSan Jose, California 95113-1905Telephone: (408) 998-3131nora. frimann@s anj oseca. go v
Attorneys for City of San Jose ~ Amicus Curiae
CALIFORNIA STATE ASSOCIATION OF COUNTIES Jennifer Henning 1100K Street, Suite 101 Sacramento, California 95814 Telephone: (916) 327-7535 [email protected]
Attorneys for California State Association of Counties - Amicus Curiae
Monica Danielle Castillo Los Angeles City Attorney City Hall East200 N. Spring Street, 14th Floor Los Angeles, California 90012 (213) 978-1870 [email protected]
Attorneys for City of Los Angeles — Amicus Curiae
SANTA CLARA COUNTYOFFICE OF THE COUNTYCOUNSELJames R. WilliamsLaura Trice70 W. Hedding StreetEast Wing, 9th FloorSan Jose, California 95110Telephone: (408) [email protected]
Attorneys for Santa Clara County - Amicus Curiae
HORVITZ & LEVY LLPJeremy B. RosenStanley H. Chen3601 West Olive Ave., 8TH FirBurbank, California 91505Tel: [email protected]@horvitzlevy.com
Attorneys for Chamber of Commerce of the United States of America; and California Chamber of Commerce
42
US CHAMBER LITIGATION CENTER Janet Y. Galeria 1615 H Street NW Washington, DC 20062 Tel: 202-463-5747 j galeria@uschamber. com
Attorneys for Chamber of Commerce of the United States of America; and California Chamber of Commerce
CALIFORNIA CHAMBER OFCOMMERCEHeather L. Wallace1215 K Street, Suite 1400Sacramento, California [email protected]
Attorneys for Chamber of Commerce of the United States of America; and California Chamber of Commerce
[X] U.S. MAIL: I placed the document(s) listed above in a sealed
envelope in the United States mail to the addressee(s) above. Under
the firm’s practice of collection and processing of documents for
mailing, it would be deposited with the United States Postal Service on
that same day with postage thereon fully prepaid at Los Angeles,
California in the ordinary course of business.
[X] BY ELECTRONIC SERVICE TO INTERESTED PARTIES: Icaused the document(s) listed above to be served by electronic means
on all interested parties via the email addresses indicated above.
[X] BY ELECTRONIC SERVICE ON STATE OF CALIFORNIA
DEPARTMENT OF JUSTICE: I caused the document(s) listed above
to be electronically uploaded to the State of California Department of
Justice website: https://oag.ca.gov/services- info/17209-brief/add
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|X] U.S. MAIL: I also placed the document(s) listed above in a sealed
envelope in the United States mail to the addressee(s) set forth below.
Under the firm’s practice of collection and processing of documents for
mailing, it would be deposited with the United States Postal Service on
that same day with postage thereon fully prepaid at Los Angeles,
California in the ordinary course of business.
Appellate Coordinator Michele Van GelderenOffice of the Attorney General California Department of JusticeConsumer Law Section Office of the Attorney General
300 S. Spring Street, Suite 1702 Los Angeles, California 90013 (213) 269-6000
300 S. Spring Street, Suite 1702 Los Angeles, California 90013-1230 (213)269-6000
Supreme Court of California 350 McAllister Street San Francisco, California 94102-4797 (415) 865-7000
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
Executed on July 30, 2018, at Los Angeles, California.
Keith Catuara
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